Fate of Longmont fracking lawsuit is in judge's hands

A drilling rig is seen March 6, 2013, off Weld Co. Rd. 3 between Mead and Longmont. (Matthew Jonas/Longmont Times-Call)

After more than three hours of legal argument Wednesday afternoon, it's now up to a judge whether Longmont's fracking case ever comes to trial.

Boulder District Court Judge D.D. Mallard said Wednesday she would issue a written order in the battle over Longmont's ban of hydraulic fracturing, or "fracking," a controversial method of cracking open hard-to-reach oil and gas deposits. City residents voted to ban it in 2012, with many citing environmental concerns.

Attorneys for the Colorado Oil and Gas Association, the Colorado Oil and Gas Conservation Commission and TOP Operating — the principal drilling company in Longmont — argued that the ban plainly ran against state law and court precedent. All three have asked for the ban to receive summary judgment and be ruled illegal on its face.

"The city is asking for change that can only come from the Supreme Court or the General Assembly," said assistant attorney general Jake Matter for the COGCC , the state's chief regulatory agency for oil and gas.

Attorneys for Longmont, however, argued that a "sea change" had taken place in the manner and scale of oil and gas operations, a change that shifted the balance more strongly toward local concerns about health and safety.

"Not a single case has said the ability to make money pre-empts a single ordinance," said Longmont special counsel Phillip Barber.

COGA, the state's largest oil and gas industry group, brought the suit in 2012.

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Colorado cities have been forbidden to ban drilling since a 1992 Colorado Supreme Court decision, Voss v. Lundvall Bros. However, that same decision also said that cities and counties weren't completely forbidden from regulating oil and gas.

Court cases since then have tried to hash out just where the boundaries lie. In general, cities and counties are presumed to be able to act on matters of purely local concern, while on matters of state or mixed concern, conflicting local regulations must give way to state regulations.

In a recent brief arguing against summary judgment, Longmont's attorneys noted that there were other well-completion methods besides hydraulic fracturing that were not banned and could be used, such as "underbalanced drilling" or UBD, and that therefore Longmont's ban of fracking did not mean a ban on drilling. COGA attorney Karen Spaulding said the alternatives didn't matter.

"The city prohibits what the state permits," she said. "It doesn't matter if there are 28,000 other kinds of completion technology. They are banning one that the state permits."

Barber and assistant city attorney Dan Kramer, on the other hand, said it didn't appear the COGCC had done anything to regulate fracking, aside from requiring 48 hours notice and a posting of the non-proprietary chemicals used. No separate state permit is required, they said; it's considered the operator's choice to frack or not frack.

"There is no regulation that says 'Hydraulic fracturing is allowed in the state of Colorado if ...' " Kramer said.

Meanwhile, Barber said, fracking has only gotten bigger and bigger. He showed a report of one well completion in 1983 that used 5,695 gallons of fracking fluid, and another that had recently used 7,819,560 gallons.

Attorney Thomas Kimmell, representing TOP Operating, agreed that oil and gas drilling had grown and transformed — and that, he said, was why the technical aspects needed to be under the state's control alone.

"Yes, the oil and gas industry, like the rest of the world, is constantly changing," he said. "The fact that oil and gas has gotten more complicated suggests we need an administrative agency with sufficient expertise. We need it more. Municipalities like Longmont do not have full-time inspectors. They do not have the expertise."

Barber argued that the state didn't have that many full-time inspectors, either — about 15 or 20, he said, to cover 50,000 wells.

"There's no evidence in the record that the commission is somehow looking over operators' shoulders," Barber said.

An evidentiary hearing is currently set for April, but would be canceled if Mallard decided to give a summary judgment against the ban. Whether she does will depend on how clear she considers the question to be — whether she agrees with COGA that the issue is one of settled law, or if she agrees with Longmont and rules there are enough potential issues to need to hear more at trial.

"You both had very well-developed cases," Mallard told the attorneys. "I will take it under advisement and issue a written order."